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Triple Talaq ordinance is Overtly Political and Bad in Law

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By Aftab Alam

For some time Bharatiya Janata Party (BJP), which is generally viewed by Muslims with skepticism because of its stridently anti-Muslim politics, has suddenly started projecting itself as savior of Muslim women and systematically raising the issue of “gender justice and gender equity” among them.
The Union Cabinet on September 19 approved an ordinance criminalizing the practice of triple Talaq (divorce) or talaaq-e-biddat which was promulgated in the evening itself after assent of the President Ram Nath Kovind. The provisions of the ordinance are almost similar as mentioned in original the Muslim Women (Protection of Rights on Marriage) Bill 2017 passed by the Lok Sabha in December 2017 but stuck in the Rajya Sabha.
Union Law Minister Ravi Shankar Prasad, while unceasingly defending the Ordinance stated that there was “compelling necessity and overpowering urgency” for it as the abhorring practice of triple talaq was continuing unabated despite outlawed by the Supreme Court (SC) last year. He stated that 430 cases of triple talaq have been reported since January 2017 to September 13 this year out of which 201 cases are of the period after the SC’s judgment on triple talaq.
The timing and the manner in which the ordinance has been brought out raises many questions. Contrary to the BJP’s claim the move seems to be more driven by political expediency than a want of genuine reform in Muslim personal law.
There was no need for the Govt to be in great hurry on triple talq issue as the Muslim Women (Protection of Rights on Marriage) Bill 2017 after being cleared by the Lok Sabha is already pending in the Rajya Sabha. Instead of building consensus through addressing the objections raised by the opposition parties who are in a position to block the legislation, the BJP preferred the ordinance route despite knowing that it will have a shorter life.
As per the SC ruling in Krishna Kumar Singh vs. State of Bihar (2017) the government it will have to bring the ordinance back before the Parliament when it meets next for winter session in November or December as re-promulgation of ordinances has been declared by the court as ‘a fraud on the Constitution and a subversion of democratic legislative processes’? The SC has made the placing of every ordinance before the legislature as a mandatory Constitutional obligation because the legislature has to determine the need for, validity of and expediency to promulgate an ordinance.
The main reason behind BJP’s haste decision to criminalize triple talaq is that it wants to place the burden of its collapse on the opposition parties as evident from the statement of Union Law Minister Ravi Shankar Prasad. He squarely blamed the Congress for stalling the bill in Rajya Sabha to prevent the end of suppression of Muslim women due to vote bank considerations despite “a distinguished woman” being at the helm of the Congress until recently.
Prasad’s statement is clear indication that BJP is going to make the issue of triple talaq a major poll plank in forthcoming Assembly elections in Rajasthan, Madhya Pradesh and Chhattisgarh which are due later this year as it did in UP. Prime Minister Narendra Modi had very aggressively raised the issue of triple talaq in the run-up to the 2017 Uttar Pradesh Assembly elections.
BJP wants to use the issue of triple talaq as a double-edged sword. First, it will try to woo Muslim women by masquerading as champion of their cause and at the same time projecting Congress as major stumbling block in their empowerment. Secondly, it will further seek to consolidate its traditional Hindu voters by sending a message that BJP is the only party which does not appease Muslims and has courage to reform the Muslim Personal Law which no other party could dare to do so due to fear of Muslim vote.
Besides overtly political, the move is also fraught with numerous inherent problems. Firstly, the ordinance was not needed at very first place after the SC declaring triple talaq as void and illegal. After SC judgment criminalising triple talaq is meaningless exercise in the eye of law with no consequence. There seems to be tangible logic of penalising a man for an act which is in-consequential.
Moreover, there are adequate provisions in both criminal and civil laws which Muslim women can take recourse to protect their rights such as Section 498 of IPC – cruelty to wives and the Protection of Women Domestic Violence Act, (PWDVA) 2005 which secures the rights of all women facing domestic violence to maintenance, residence, protection from violence and to custody of their children. So the new ordinance adds nothing new.
Secondly, the penalty provided for triple talaq is excessively disproportionate and violates one of the fundamental principles of the criminal law which states that the severity of punishment must commensurate with the seriousness of the crime. The principle of commensurate-deserts permits severe punishments only for serious crimes. Under criminal law jurisprudence imprisonment is necessarily treated as a severe penalty and hence be limited to only serious offenses which cause or risk grievous harm.
The Indian Penal Code provides two years imprisonment even for more serious and heinous crimes such as rioting with deadly weapon which is likely to cause death (S.148) and, promoting enmity between classes of people (S.153-A) etc. In the light of our sentencing pattern there seems to be no logic in awarding three years imprisonment for breach of a civil contract which a Muslim marriage is.
Thirdly, the ordinance has the provision of subsistence allowance for wife and her children determined by a Judicial Magistrate. But there seems to be no answer as to how husband would pay subsistence allowance while in Jail as this practice is more common in poorest strata of Muslim society.
Though the ordinance has incorporated certain changes in the original Bill on the subject which was cleared by the Lok Sabha in December 2017 to allay fears about its possible misuse it still suffers from legal and technical infirmity which needs to be rectified.
For instance it has now introduced the provision of bail but the offence is still cognizable and compoundable which means husband can be arrested without warrant and only a magistrate is empowered to release the accused on bail and that too after hearing the wife. The scope of complainants has also been reduced to wife or blood relations.
Though the ordinance talks about the possibility of reconciliation and compromise by the parties but critics rightly fear that a criminal case against husband would completely jeopardize any such prospect.
The provisions of the ordinance are also contrary to the stated goal which is to help Muslim women and provide them greater security in the matrimonial relations. But what appears from the move is that conversely it would end up harming them. The move may certainly be politically benefitting for the BJP but it is unlikely to do any help to vulnerable Muslim women as propagated by it.
The practice of triple talaq is a social evil and it will not end by merely criminalizing it. Furthermore it is also erroneous to believe that after being criminalized Muslim men would not resort to it as there is no credible empirical evidence to suggest that the rate of crime has been reduced substantially with harsher punishment.

 

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Opinion

What Do the Echoes of Operation Kabaddi Really Say?

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By Ali Ahmed

Two unconnected headlines at the start of the week are connected in this article. In one, the spokesperson of the United Nations Secretary General expressed the limitations of mediation as a conflict resolution mechanism for the conflict in Kashmir, arguing that both sides – India and Pakistan – needed to be on board for the Secretary General to exercise initiative under his good offices mandate enabled by UN Charter Articles 98 and 99.

While Pakistan repeatedly brings the Kashmir question to the attention of the UN – most recently during the visit of the President of the General Assembly to Pakistan last week – India takes the cover of the Shimla Agreement that buried the UN role in Kashmir by calling for a bilateral settlement of the dispute.

 

With India reluctant, there is little possibility of mediation figuring as a conflict resolution tool or the UN taking center stage in bringing to a closure its longstanding interest in the Kashmir question (To recall, the second longest serving UN observer mission is along the line of control (LC)).

However, there is one situation that can potentially propel UN center stage. This would be so if the actions hinted at in the second headline come to pass.

Among the contents of a book by a Jawaharlal Nehru University academic, Line on Fire: Ceasefire Violations and India-Pakistan Escalation Dynamics, is reportedly the revelation of an Indian plan to capture a few posts along the LC in late 2001, in a operation codenamed Operation Kabaddi. Apparently the operation was aborted by the intervention of 9/11 and onset of the United States’ led Operation Enduring Freedom in the region.

The book has it that the plan envisaged the capture of some 25-30 Pakistani posts along the LC in order to prevent the infiltration of terrorists into Kashmir, after preparations had been completed in end September. In the event, the plan could not be actioned even though there was a possible incident on October 1 that could have triggered the multiple attacks across the LC: the terrorist strike on the Kashmir Legislative Assembly in which some 38 people were killed.

The plan is precursor to the latter day surgical strikes of end September 2016. The surgical strikes did not have the same scope or magnitude, and with good reason.

Any operation – even if not as ambitious as made out in the book – would focus the UN Security Council on the escalatory possibilities connected with the outstanding issue that remains on its agenda as the ‘India-Pakistan question’ since the passage of its Resolution 39 (1948) on January 20, 1948. Mindful of the possibility of being forced to the table by a Security Council resolution, India sensibly restricted the scope of the surgical strikes, assuring Pakistan the following day that the operation had ceased.

Even so, the army’s ongoing reforms reportedly cater for leveraging its conventional advantage. After playing footsie with Cold Start – the freshly minted doctrine in wake of Operation Parakram in 2002-03 – by acknowledging its existence in fits and starts over its lifespan, the army owned up to it definitively, early in the tenure of the current army chief.

The army is currently engaged in a reform initiative in which the integrated battle groups that found mention in the doctrine are firmed in. The idea is of dedicated formations – likely heavier than brigade sized combat commands – formed for territory centric or destruction tasks. Pre-designated and programmed and having the requisite resources – firepower and engineer – intrinsic, these would be in a position for an early launch from a ‘cold start’, as envisaged in the evocative, if colloquial, name of the doctrine.

The JNU academic and author of the book Professor Happymon Jacob, hopes to focus attention on the continuing escalatory possibilities resulting from incidents along the LC which numbered some 3,000 last year, and the need for formalising the ceasefire dating to November 2003. The ‘ceasefire’ was not the result of a document, but is an understanding. This only reinforces Jacob’s fears of escalation, apprehensions that in light of the nuclear dimensions to war it can only bring the security minders of the international community – the Security Council – down on South Asia in quick time. The international community has a genuine interest in preventing a nuclear war outbreak, since the consequences are potentially global.

While India would press for having Pakistan in the dock for provoking the conflict in first place by a terror incident or a series of incidents that it could interpret as an armed attack, there is no guarantee that the Security Council will stop at that. This could release the Secretary General from his limitation encapsulated in the first news article referred to above, which incidentally was also voiced earlier in April last year.

India would be required then to engage with Pakistan meaningfully over Kashmir, something it is loath to do.

India therefore needs to reappraise its hardline in regard to Pakistan and in Kashmir. The hardline creates the conditions for a bust up over Kashmir. The army chief among his numerous media interventions has indicated that India has options up its sleeve along the lines of surgical strikes, but of a different sort and order that he did not dwell on in detail, keeping surprise in mind. In future such strikes cannot be as tame as the surgical strikes, fobbed off by the Pakistanis as a non-event.

Any future such strikes would need to be of the order of the hype that has since attended them, rather as they are depicted in the somewhat misnamed recent release Uri, which dramatises the surgical strikes. If the up-gunned Integrated Battle Groups are up and running by then – the exercises to prove their new design are due this summer – then their employment would have to reckon with the unintended outcome: international attention forcing India to the table to discuss Kashmir meaningfully.

For India, meaningful talks imply getting Pakistan to vacate its occupation of areas of the erstwhile kingdom of the maharaja. Keeping its claims alive, only last week India protested a Pakistani court order extending its sway over Gilgit-Balitistan as interference in India’s internal affairs. Its chief objection to the Chinese lifeline to Pakistan, the China-Pakistan Economic Corridor, is that it trespasses Indian territory. While India’s contention would no doubt figure in the talks forced on India, the casus belli (case for war) would likely lie in the tinder accumulated in Kashmir which would have to be reckoned with. Though distasteful, it would be a consequence of any Indian military action.

Proceedings at a book release function over the weekend organised by the Center for Land War Studies do not lend confidence that there is enough appreciation of the unintended consequences of military response. A significant reservation voiced by the speakers comprising retired members of the military brass who contributed to the CLAWS publication – Military Strategy for India in the 21st Century – was that there is little government-military interface on the nature of India’s military options.

This is little different from the criticism governments have faced over the past, which indicates this government’s security mindedness has been little different from its predecessors’, notable in light of its assiduous distancing from the past and its tom-tomming of the same. The difference is its hardline, which can land the region in a soup in quick time, absent mechanisms, other than routine diplomacy, for engaging Pakistan.

While to peaceniks the unintended outcome – meaningful talks perhaps mediated by the international community – of military action in line with Operation Kabaddi is not unwelcome, this is perhaps not an outcome sought by NSA AjitDoval’s team. In which case, Doval is best advised to read the CLAWS publication on military strategy and be mindful of the inadvisability of military options, and preventively defuse the conditions that keep Operation Kabaddi plans well dusted.

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Opinion

How eluding is our justice system

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By Shabbir Aariz

Given the human imperfections and infirmities, perfect justice remains a divine attribute belonging to the throne of God. All humans being alike, therefore, dispensation of justice by one human being to another is not only difficult but impossible. Any hope of perfect justice at the human hand is a mirage. Yet the justice that lies within human grasp need not to be jeopardized in pursuit of perfection. Needless to say that even such pursuit in not felt in our system. Subversion of even the existing system after about three quarters of century of freedom and a constitution is loud and clear. The path of justice has not remained that straight where the freedom of the people could be defended against attacks from various quarters. The inclination to injustice increases instead of decreasing. Things seem to have reached to such a pass where defiance is celebrated and the system of safeguards is destroyed. The noblest desire, aspiration and hope in the society is always for fair and speedy delivery of justice which is becoming a dream with every passing day and which is needed to remain a constant goal of the system.

The Indian justice system, as various studies suggest, is too slow, too costly and too complex. It is a paradox that courts and police in India remain the least preferred mechanism for resolving disputes and access to and quality of justice further remain a question mark. The system has failed marginalized, disadvantaged and under privileged population. Democracy is never possible where the capacity of justice is lacking. India’s criminal justice system is so ailing and imperfect that even after decades trials are not concluded. As if this was not enough, we have seen in immediate past, people were found innocent after years of incarceration and their trials moving on slow pace at times out expediency. The law is not dead but appears to have slept. It no longer seems to have remained a sacred work to determine the rights, property, life and civil duties of the people. It has to be the prime duty of our judicial system to preserve the civility and reason instead of, though important as they are, the dignity of the administrators and rulers. We have been hearing of reforms also in the system but nothing has changed in reality so far. This insensitivity to reform or to change, has resulted in bad and erroneous verdicts even at the highest level also. Some of such verdicts are then forced down the throat of the other people or backed with bullets. This is more because of the fact there is shyness in accepting the fact that the mind has enormous capacity for error, self-deception, illogic, sloppiness, confusion and silliness which are required to be diminished. Judges are sworn in to decide according to the laws and not according to the good pleasure as there is no piety in that. A judge has responsibility as leader for setting the level of the administration of justice. Over two thousand years ago, Socrates said, “four things belong to a judge: to hear courteously, to answer wisely, to consider soberly and to decide impartially.” This mantra needs to be followed by all earthly systems of justice all over the globe. More particularly in a society one like India where over the years numerous verdicts from the highest court have become the subject of debate for wrong reasons. And equally those cases pending disposal for not a number of years but for generations. Judges have used extra-legal phrases and based their verdicts on such phrases and perceptions created totally extraneous to the law and circumstances. In the recent past , the overall pathetic situation of the justice system brought the then Chief Justice of India, Justice T. S. Thakur publically to tears and that holds the sufficient testimony to our ailing justice system at the highest level.

 

There may be a number of reasons for the system not coming up to the level of expectations and some are glaring. There has been a long standing practice of treating the judicial appointments at higher level as political patronage and outcome of nepotistic fiefdoms of well connected. Though now made permissible by the Supreme Court, judges as persons and courts as institutions have enjoyed greater immunity from criticism while being humans with common human frailties and fallibilities. This has resulted in loss of faith in the justice system on the one hand and in creation of a parallel system like khapp panchayats to set unhealthy trends in the society. It is therefore, imperative for those in position to seriously accord their thought and attention to the health of this third and important pillar of the state which makes it more urgent in a democratic system of the society. Unless it is so done, the system shall continue to elude those who seek justice.

(Well known poet and writer, the author can be reached at: [email protected])

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Opinion

Chinese Islamophobia was made in the West

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By MobashraTazamal

In response to the rising international criticism regarding the detainment of more than a million Uighur Muslims in so-called “re-education camps”, China’s Foreign Minister Wang Yi defended the country’s actions, stating, “the efforts are completely in line with the direction the international community has taken to combat terrorism … if we can take care of prevention, then it will be impossible for terrorism to spread and take root.”

Other Chinese officials defended their country’s actions, claiming that Islam is an “ideological illness,” positioning the concentration camps as “hospitals” needed to “cure” people from this sickness. China’s ambassador to the US, Cui Tiankai stated that the country is trying to turn the Uighurs into “normal people,” and a pro-government newspaper tweeted: “The West should be consistent over its own value system. How can it be fine to kill terrorists with missiles, but a humanitarian crisis when Xinjiang attempts to turn them into normal people?” Such statements describe the faith of over 1.7 billion people as an illness from which they need to be cured.

 

Viewing Islam as an abnormality and the cause of “extremism,” is not exclusive to China, rather it finds its home in the West’s Countering Violence Extremism (CVE) programs, which view expressions of Muslim identity as uniquely associated with “extremism” and “radicalisation.” Programs aimed at “preventing extremism,” have resulted in the stigmatisation and criminalisation of Muslim communities.

Today’s public discourse on terrorism consists of a fixation on Islam and the expression of Muslim identity as indicators of “extremism,” “radicalisation,” and “terrorism”. It is not a line of thought constrained to the People’s Republic of China, rather this viewpoint permeates much of Western academic research and policies. Termed “new terrorism” studies, this field of work arose post-9/11 in an effort to explain, not understand, 21st-century political violence and argued that Islam was the root cause for individuals choosing to engage in violence. In the US, this framework led to destructive wars abroad, surveillance of Muslim communities at home, and broad violations of human rights.

In 2011, a US government white paper likened the hijab to “passive terrorism.” The author viewed an article of clothing – a headscarf worn by many Muslim women who feel it is part of their religion – as an indicator of support for violence. This same cultural racist argument underpins the hijab and veil bans that are sprouting up across Europe. Politicians and activists who support such measures argue that a piece of cloth is equal to violence and thus pass legislation that forces women to undress, resulting in the gross violation of individuals’ human rights. Such policies are built on a false and unfounded premise that identifies markers attributed to Muslim identity (growing a beard, attending mosque, wearing a hijab, etc) as indicators of “radicalisation” and “extremism.” China too has adopted this framework as veils and “abnormal” beards are forbidden in the Xinjiang region.

Chinese officials’ dangerous claim that Islam is an “illness” can also find precedent in the comments made by western politicians who have long used anti-Muslim claims to promote their hostile agendas. In 2014, Oklahoma state representative, John Bennett, described Islam as a “cancer in our nation that needs to be cut out.” Donald Trump’s former National Security Adviser Michael Flynn described Islam as a “malignant cancer,” and asserted that “fear of Muslims is RATIONAL”. A 2016 tweet from Flynn shares eery similarities to China’s current claims, as he declares “Islamic ideology [is] sick and must B healed”. In 2015 on The Kelly File, conservative political commentator Glenn Beck argued that there is a “disease in Islam” and it must be addressed.

Such dangerous claims pathologising a belief system are not restricted to the United States. In March 2017, far-right Australian politician, Pauline Hanson, stated: “Islam is a disease; we need to vaccinate ourselves against that.” In 2017, Caroline Santos, a candidate for United Kingdom’s right-wing UKIP, described Islam as a “cancer” in a tweet praising far-right figure Tommy Robinson.

Noted anti-Muslim figures like Ayan Hirsi Ali and AsraNomani have also attributed common Muslim phrases of “Allahu Akbar,” (God is Great), and ‘inshAllah” (God willing) as being associated with extremism and terrorism. Nomani and Hirsi Ali are known right-wing figures who have made a career out of promoting dangerous and discriminatory views about Muslims, but their claims that Arabic terminology is a “red flag” for extremism and/or terrorism is not relegated to a niche political view.

In 2018, Swiss officials fined a man for saying “Allahu Akbar” in public, and defended their actions arguing that a “passersby could have mistaken him for a terrorist.” Today in China, Muslims who have been heard greeting one another with the common phrase, “As-Salam Alaikum,” (peace be upon you) have found themselves detained in the ever-expanding networkof concentration camps.

China is instituting the very calls made by western politicians to “cut out” Islam, by criminalising any expression of Muslim identity, including removing Qurans from people’s homes, restricting fasting during the month of Ramadan, and forbidding Muslim parents from giving their children Muslim names. In an effort to “heal” Muslims from this “dangerous ideology,” the government has established 28 detention camps, described by Amnesty International as comparable to “wartime concentration camps,” aimed at mass scale eradication of Uighur Muslim identity. Detainees in the camps are forced to endure psychological and physical torture, renounce their faith, and pledge allegiance to the Chinese communist party.

Under the guise of preventing terrorism, governments have been able to institute discriminatory and deadly policies targeting Muslim communities. Proponents of such measures justify their actions with the demonstrably false and discriminatory argument that identifies Islam as an explanatory factor in political violence.

What we’re currently witnessing in China is the product of a framework that points to Islam and the expression of Muslim identity as the root cause of terrorism, a viewpoint that finds its roots in, and is a staple of, Western political discourse.

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